UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Rehearing Denied April 20, 1972.
Tamm and MacKinnon, Circuit Judges, and A. Sherman Christensen,* U.S. Senior District Judge for the District of Utah.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
The question presented is whether a police officer, possessing information based upon previous contact with appellant, allegedly obtained illegally, has probable cause to arrest appellant when he confronts her in her own apartment concealing contraband narcotic drugs when he is present on official business. We are also asked to determine whether appellant should be given the benefit of the dicta in our opinion Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970) (en banc) when she was convicted two months prior to the issuance of that decision. Appellant's allegation of error arises from the refusal of the district court to grant her motion to suppress certain evidence. Finding no error in the district court's ruling and finding that Watson is inapplicable to the case at bar, we affirm appellant's conviction.
Appellant was convicted on the first count of a two count indictment charging violation of 26 U.S.C. § 4704(a). The second count, charging violation of 21 U.S.C. § 174, was dismissed by the Government at the time of sentencing. At commencement of the trial appellant's counsel made a pre-trial motion to suppress evidence which was denied by Judge Pratt. The judge then tried the case on the evidence produced at the hearing on the pre-trial motion and on the stipulations of counsel. Judge Pratt, after waiver of jury trial, found appellant guilty and sentenced her to a term of two to six years.
The basic question raised on appeal is whether the arrest of Miss Williamson can be allowed to stand since the arresting officer previously learned of possible criminal narcotic activity on her part by executing an allegedly illegal search warrant. The pertinent facts reveal that Detective Taylor submitted two affidavits to Judge Pryor, of the then Court of General Sessions, on March 17, 1969. These affidavits were in support of his request for two search warrants and two arrest warrants. One of these search warrants was for apartment 208 at 1423 Harvard Street, N.W. and was accompanied by an arrest warrant for Charles Harris. The affidavit alleged that Harris, operating from an apartment listed as belonging to appellant, sold narcotics to a police informant on several occasions during the week prior to the issuance of the affidavit. Taylor testified at the hearing on the pre-trial motion that he typed this affidavit himself. The second affidavit was not typed by Taylor but rather by a secretary of the police department's Narcotic Squad. In typing this second affidavit the secretary used the first affidavit, typed by Taylor, as a model and made certain changes in accordance with the instructions furnished her by Taylor. This second affidavit was used to support issuance of a search warrant for apartment 201 in the same building and an arrest warrant for one Clarence Harris. This affidavit, as the one typed by Taylor, charged that the police informant made illegal narcotics purchases from Clarence Harris in apartment 201 prior to the issuance of the affidavit and that this apartment, too, was listed to appellant.
At the hearing on the pre-trial motion before Judge Pratt, Taylor admitted that the second affidavit did contain certain errors including listing apartment 201 to appellant. He also admitted that the second affidavit contained certain other material errors with respect to the description of apartment 201. He did assert that all information in the affidavit relating to apartment 208 was correct and also that his informant did make two narcotic buys in apartment 201 and one in apartment 208 during the time prescribed in the affidavits. Based on the affidavits Judge Pryor authorized four warrants, two arrest and two search, on March 17, 1969. Taylor executed these warrants on March 18, 1969, searching both apartments 208 and 201 and arresting Clarence Harris. In searching appellant's apartment 208 Taylor uncovered a quantity of narcotics and therefore also arrested appellant who was present during his search. The arrest warrant for Charles Harris, however, remained outstanding.
Taylor received information on March 30 to the effect that Charles Harris was then present at apartment 201 at 1423 Harvard Street, N.W. Proceeding to assemble a raiding party, Taylor arrived at the apartment building at five in the morning. Upon arrival at the building Taylor sent some of his party to the rear of the building in order to observe the rear windows of apartments 201 and 208. In the moments that followed, Taylor knocked at the door to apartment 201 and announced both his presence and purpose. He heard a great deal of commotion and toilet flushing in the apartment. Three of those in the apartment, Vincent and Antoinette Harris and Harold Legon left the apartment via a fire escape and commenced to run along the rear of the building. Taylor forced his admittance to apartment 201 where he found Charles Harris and several others, all of whom he placed under arrest. Following this scenario Taylor left apartment 201 and headed for apartment 208. He knocked on the door and in response to an inquiry from appellant identified himself and was admitted. At this time another officer was following the Harrises and Legon through the rear window into apartment 208. Taylor assisted this officer in bringing the would-be escapees into apartment 208. Then turning his attention to appellant he noticed that she had several prescription type vials in her hand and that each contained pills which were white in color. Based on his vast experience in the narcotics area, and his earlier contact with appellant a few days prior, Taylor concluded that these pills were indeed narcotics. After asking appellant to surrender the vials to him, and telling her that he could have a policewoman come up to thoroughly search her if she didn't cooperate, appellant surrendered the vials to Taylor. She was then placed under arrest. The capsules were tested on the scene by an officer of the Narcotics Squad and were found to contain narcotics; to wit, 1064 miligrams of heroin hydrochloride.
In appellant's version of the occurrence in her apartment, she contended that she asked Taylor in to arrest Legon and that Legon had dropped the vials which Taylor found in her possession. She testified that she was attempting to secrete them from Taylor because of her recent trouble involving narcotics. Appellant, through her counsel, made three contentions with reference to her motion to suppress:
1. Her arrest lacked validity since it was based, at least in part, on information gained in executing the March 18 search warrants. Appellant contends that the warrants issued for apartment 201 and 208 were so contradictory as to be "totally incredible."
2. Detective Taylor's entry of her apartment without a warrant was illegal.
3. Even if Taylor was legally in her apartment he had no right to search her.
The court considered these contentions and Judge Pratt ruled that appellant consented to Detective Taylor's entry into her apartment and that his seizure of the narcotics capsules was legal since the contraband was in appellant's hand and, therefore, in clear view of the officer. With reference to the warrants, the trial judge felt that it was unnecessary for him to make any ruling on them since the warrant initially ...